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TexLaw
TexLaw, Attorney
Category: Business Law
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Experience:  Internationational Commercial Attorney
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Hi ZDNLaw, Thank you for your valuable advices, much appreciated.

Resolved Question:

Hi ZDNLaw,

Thank you for your valuable advices, much appreciated. I am opening a new question here on a particular point of discussion we had, that is about the hearing to come. The judge issued an order defining strictly the subjects to be debated. So it;s going to be about pre-judgment interests, should they have been granted in the amended final judgment, yes or no. Any other subject will be dismissed swiftly. Therefore this is not likely to be the place where I will make my point, yes or no ? Any idea on how I can get around this ? Appeal, of course, but we want to try our best in the lower court first... So ???
Submitted: 1 year ago.
Category: Business Law
Expert:  TexLaw replied 1 year ago.
Hi,

My understanding is that your point was that you do not believe that pre-judgment interest should be included in the judgment. This was in addition to your point that the judgment should not be amended without a hearing, is this correct?
Customer: replied 1 year ago.

My understanding is that your point was that you do not believe that pre-judgment interest should be included in the judgment.

This is subsidiary because I perfectly agree that the final judgment could have included pre-judgment interests. Practically, because this is an unjust enrichment case and there is controversy as to when the starting point should be, and nothing is specified in the pleadings, I am not sure that this starting point could be determined without any pleading.

My main point is that it didn't, subsidiarily, that the way they were calculated is violating FL Statutes, that they should not compound with post judgment interest in FL, and that a loan refund was also added erroneously (as i am not the lender) and with an incorrect amount.

The way I look at it is like passing through the customs with a drivers license when a passport is mandatory. It does not make a difference if I am good friends with the immigration guy. (kidding)

In Malone v. Percival, the 2nd DCA states:


"A trial court may correct a clerical error 'at any time on its own initiative'
pursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which include
errors that affect the substance of a judgment, must be corrected within ten days
pursuant to Florida Rule of Civil Procedure 1.530[(g)], or by appellate review." Bolton v.
Bolton, 787 So. 2d 237, 238-39 (Fla. 2d DCA 2001). As stated in Byers v. Callahan,
848 So. 2d 1180, 1184 (Fla. 2d DCA 2003), "[t]he 'clerical mistakes' referred to by Rule
1.540(a) are only 'errors or mistakes arising from accidental slip or omission, and not
errors or mistakes in the substance of what is decided by the judgment or order.' Town
of Hialeah Gardens v. Hendry, 376 So. 2d 1162, 1164 (Fla. 1979) (quoting Keller v.
Belcher, 256 So. 2d 561, 563 (Fla. 3d DCA 1971)."

My main point is that it could have been decided by the final judgment without pleading, but it could not be amended without a hearing, following rule 1.530(g)

The situation created by the court when deeming my letter as motion to rehear and reconsider is very confusing.

First of all, this is not what it was meant for, it was meant to object to the entry of the amended final judgment based on scrivener's error, on the grounds that the amendments were no scriverner's errors but substantial modifications..

It was not requesting a hearing.

I was notified of the amended final judgment AFTER I wrote the letter.

The hearing request is on my motion to vacate the amended final judgment which I filed immediately after it was issued.

That motion is ignored or "shaded" by the deemed motion.

I have been trying to interpretate that bizarre deemed motion on and on.

My conclusion is that it is totally without any basis and looks like yet another denial of due process when I am deemed something I had never any intention of nor even any possibility to intend so.

However, as I see it, the functional part of that motion is that it provides the "missing" hearing to validate the amended final judgment, because the argument will be restricted about the pre-judgment interests and then re-issue a new judgment or even not.

This is why I want to file a motion on 1.540(b) for new evidence, excusable neglect, fraud and mistake of law, including many points of contention that I am working on, if they are valid and strong, of course, and next, if the motion to vacate can be filed, get an order on that motion that I will appeal, the botXXXXX XXXXXne is that this is not the only abnormality, there is a whole series.

I had to be hospitalized 3 months after my first motion to dismiss the case was granted. The order was leaving 20 days to amend and attach contracts, 4 months later, Plaintiff filed an amended complaint without the contracts (violating rule 1.130 FL Rules of Civ Proc) and without leave of court, we filed a motion to strike/dismiss on that, and it was denied (???) this is how the whole court case followed up.


Expert:  TexLaw replied 1 year ago.
This is very hard for me to say as to what exactly the court is doing because it is very difficult to understand exactly what is going on. You are confused as well as I am.

The motion being heard at the hearing is your motion to reconsider vacating the judgment.

At this hearing you will be able to argue:

1. Judgment was final and could not be amended substantially with the inclusion of pre-judgment interest and other items without a hearing on the matter. Thus the amended judgment is void on its face. At this point the court is likely to say "we are having a hearing on it now."

2. The inclusion of pre-judgment interest is not correctly done. The date on which it should start is ______. The rate should be _______.

3. My motion for rehearing also covered the motion to vacate the judgment. The judgment should be vacated because the case should have been dismissed (as your argument goes) because the court granted a motion to dismiss and the Plaintiff missed the deadline set by the court's order by which the Plaintiff could amend their claims.

Your point about due process being denied when the court allowed the complaint to be amended is not very strong. Even if you did not receive notice and the court allowed leeway on the order, you eventually got notice of it and the court considered your arguments. The court's error may be deemed harmless.

In other words, you need to focus your argument on this point on the actual harm it caused, not the simply procedural error. A court's harmless error will not be disturbed upon appeal. The court knows this, and you need to argue to the point.

In regard to your motion for new evidence, if you believe that you have new evidence, then you need to go ahead and file this motion while the court still has jurisdiction and prior to the appellate deadlines. When you file it, make sure you follow all the rules for the motion and ask for a hearing on it as well.
Customer: replied 1 year ago.

Thank you for the info, appreciated !

without a hearing on the matter.

We have been debating this point to find out if a hearing was necessary or not. This was the opinion of one of the lawyers here who helped me to write the letter that I have shown you.

However, another lawyer is pointing out that rule 1.530(g) -- which should have been used here to amend, as per DCA's constant opinions -- does not require necessarily a hearing but just a motion, so it is at the discretion of the judge. Now here we have a motion (deemed) and a hearing that is scheduled.

You pointed out that the pre-judgment interests don't need to be plead. Because there are contradicting law cases of the DCA's about the start date of these interests when it is not a contract with a well determined breach date, my objection looks weak to me. The miscalculation of interests and the loan are small mistakes.

All this might cause the judge to correct them without really re-issuing a new final order.

The late amended complain is another point for the appeal, if I understood well. I actually filed a 2nd motion to strike/dismiss that amended complain ( the initial complain had been dismissed by my 1st motion) but very surprisingly my 2nd motion was denied.

Your point about due process being denied when the court allowed the complaint to be amended is not very strong.

I guess you are talking about the Final Judgment ? Well, if a hearing is not necessary, but just a motion, and the matters did not need to be pleaded, I quite follow you.

In regard to your last point I need to document myself about the 1.540 (b) motion.

Alternatively, I have 5 sworn notarized affidavits with 2 including new evidences of people that are a bit shocked about the whole process here, and willing to testify. These affidavits are really bringing the case of plaintiff to the ground.I can also explain why it was impossible to gather them before based on excusable neglect.

I am looking at the best way to bring this up.

Option 1. To amend the deemed motion by bringing up the affidavits and the new evidence.

Option 2 : to file a motion for reconsideration of the order denying my previous motion for a new trial based on new evidence and affidavits

Option 3 : to file an hybrid motion with 1.540(b) included

Option 4 : ???

Which one is the most typically used in this type of situation ?

Expert:  TexLaw replied 1 year ago.
You've followed me correctly on all the points that I've made except for the one about the complaint being amended. I'm not referring to the final judgment here. I'm referring to the motion to dismiss which was granted at the beginning of the case, and which the court allowed the Plaintiff to amend despite the fact that the deadline had passed. My point there is that this may amount to harmless error.

The Motion under 1.540(b) is what you need to file in regard to the new evidence. I would file this separately and ask for a hearing on the matter. I would go ahead and file it now and serve it on opposing counsel and the call the clerk and ask whether the matter may be heard at the upcoming hearing instead of a new date.
Customer: replied 1 year ago.

My point there is that this may amount to harmless error.

Please explain me the "harmless" ?... I wasn't clear here. The court did not allow to amend
Plaintiff just filed the amended complaint wwithout a leave of court, no excuse, etc...

Harmless : not for me, instead of having a case dismissed the second time and forever, as required, I was put in a position wherecould no longer secure my defense becuase i was hospitalized and under various treatments for a long period of time, and it was not predictible that when a judge dismissed a complaint with leave to amend with 20 days, the plaintiff will file 4 months later.

However, my point is not why the judge let this happen without striking. My point is that my counsel back then filed a motion to strike/dismiss contending failure to file the amended complain in the lapse of time and also failure to follow the court order to attach contracts ( violation of the order and of mandaotry rule 1.130 , and it was denied ).

Expert:  TexLaw replied 1 year ago.
At this point in the case, the court's denial of the motion to dismiss is final. It is not necessary for appeal on that point to seek a motion to vacate based on it. You can try, but it is going to be a waste of your resources (in my opinion), and will give away your arguments that you are going to have to make on appeal on the issue ahead of time (giving your opponent more time to prepare).

In regard to harmless error:

FSA 59.041 Harmless error; effect.—No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.


The erroneous denial of a motion to dismiss may be harmless error. See, e.g., John W. Campbell Farms, Inc. v. Zeda, 59 So. 2d 750, 751 (Fla. 1952) (applying harmless error statute to trial court's error in denying a motion to dismiss due to misjoinder of plaintiffs). HN10An error is harmless if "the error complained of did not contribute to the verdict or, alternatively [**19] stated, . . . that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

Dennis v. State, 51 So. 3d 456, 463 (Fla. 2010)
Customer: replied 1 year ago.

has resulted in a miscarriage of justice.

Is this not the case, when the Plaintiff would have attached the contracts and they would have shown that the exhibited contract of the complaint and the amended complaint - that was expired with "time is of the essence" well before the facts - had been replaced by 4 other contracts signed after it, very different asper terms and conditions, and with clauses guaranteeing that they were representing the entirety of the agreements in between the parties, which was invalidating Plaintiff's complaint/allegations ?

So now we have a final judgment based on an expired contract when the judge overruled his own order and let the case survive. So dit the error not contribute to an erroneous judgment ignoring the real contractual context ?

Expert:  TexLaw replied 1 year ago.
I don't know that I'm following what you are saying.

The motion to dismiss was based on the fact that the plaintiff did not attach the contract. The plaintiff later on (although after the deadline) attaches the contract.

You are saying though that this contract that was attached is for some reason invalid?
Customer: replied 1 year ago.

The plaintiff later on (although after the deadline) attaches the contract.

Sorry, I was not clear.

The initial complaint was referring to a contractual environment with multiple contracts, but exhibited only the first one ( the eldest ) that was expired well before the facts and time was of the essence ( specified).

My lawyer filed a motion to dismiss based on this situation and other major inconsistencies.

The judge granted the motion with prejudice on one count and with leave to amend for the rest and order to attach the contracts to the amended complaint.

The amended complaint was filed 4 months later without leave of Court and without attaching the contracts.

Expert:  TexLaw replied 1 year ago.
Were the contracts ever actually produced?

If the contracts had been produced at that point, would it have changed anything in regard to the court's verdict?
Customer: replied 1 year ago.

Never produced.

Court's verdict >> are you talking about the order denying my 2nd motion to strike/dismiss the amended complaint or about the final judgment ?

Expert:  TexLaw replied 1 year ago.
Was this a bench trial, or a jury trial?
Customer: replied 1 year ago.

bench/non-jury

Expert:  TexLaw replied 1 year ago.
This would be in reference to the final judgment though. I'm assuming because the contracts were never produced that you requested them through discovery as well?

If the contracts were never produced then how could the court find against you based on the contracts?
Customer: replied 1 year ago.

The court findings were based on the expired contract.

you requested them through discovery as well?

One contract came up as part of a subpoena by Plaintiff to a third party and was invalidating the previous (exhibited). It was a new rental contract, while the exhibited contract was a lease purchase option contract (prior, expired, and time was of the essence)

Plaintiff had "forgotten" to subtract this document from the subpoena because his production was messy, on a CD-ROM where the same set of documents were brunt 3 times. I presume that the intention was to overwrite after subtracting.

I was notified 3 business days before the trial hearing, more or less, due to withdrawal of my counsel after major disagreement.

While I was hospitalized Plaintiff had filed a 2nd Amended complaint 18 months after his initial complaint. The amended complaint, other than alleging exactly the contrary as what was previously pleaded, was seeking double recovery of insurance moneys.

I took advices and it was confirmed. My counsel had put a young lawyer on my file who was incompetent and who told me it was too late to file a motion for fraud 1.540(b) (???) This is when I went to his boss who was supposed to manage my case in the first place, and we had an argument after which he decided to pull out in the middle of the case, even though I had protested in writing. Regardless, he filed a motion to withdraw etc... all being sent to a wrong address and came back to the docket, and i was helping my wife in CT in the aftermath of hurricane Sandy. I found myself having missed the calendar call hearing and other procedures for having been let dropped dead by my counsel without knowing really,becuase the order was also mailed to wrong address.

Judge denied my motion for continuance and I was placed in a courtroom with little knowledge of the file and no time to photocopy my exhibits for admission to evidence, except a few.

I had the business letter with logo of the third party ( Company) to which one contract was attached. The contract and the letter were invalidating the exhibited contract on which Plaintiff was founding al his pleadings

The contract was also establishing the double recovery of insurance moneys fraud.

When he saw me showing the document to the judge for admission, Plaintiff got panicked, took his counsel by the arm and ran out of the courtroom to discuss the issue.

A short while after they came back and his counsel objected the hearsay exception, even though these were business records. The problem was that I had only one copy of the contract and 3 copies of the business letter, because of the last minute photocopy issue. So the letter was rejected and the contract could not be produced, based on hearsay exception. I had argued to the judge that this and other documents exhibited by Plaintiff ( but that he avoided to have admitted as evidence) was establishing the double recovery of insurance moneys fraud.

Whatever I would say at that hearing was like talking to a wall...


Plaintiff came up at thee trial hearing with a Notebook of exhibits that were part of the discoveries, in which there was another one of the contracts, but he did not request for admission to evidence, and I was ignoring I should have done this in his place.


I need to check the discoveries, will let you know what else was asked.

Expert:  TexLaw replied 1 year ago.
Now it all makes sense. I want you work with me here, the harmful error is not the failure of the court to dismiss the case. It is the failure of the court to rule that the expired contract was applicable in the fact of evidence that there were replacement contracts that were in force. Also, the hearsay objection as to the contract should have been overruled. The harm came in the form of the court not granting you a continuance when your counsel abandoned you and then sent notice of the same to the wrong address.

First of all, it sounds like there is malpractice going on. You should consider consulting a malpractice attorney about suing your prior attorney for what he has done.

Second, the other contracts which replace the expired contract should be made the subject of the Rule 1.540 motion, with an explanation focusing on the fact that the Plaintiff has defrauded the court by not producing the documents which were in his possession (which you can establish through the CD Rom)
Customer: replied 1 year ago.

Well, I am impressed by what you wrote, thanks a lot for the quality of this information.

If I get your point well, it is to present - in a 1.540 motion- the 2 situations where initially there is an order to attach the contracts (also mandatory as per rule 1.130 of FL Civil Proc.) that is overruled despite a motion to strike pointing at the issue, and finally a Plaintiff who defrauds the court by not requesting admission of the contracts, actually holding them "hidden" to the eyes of the court.

The interesting part of the defrauding is that Plaintiff came with an exhibit notebook to the trial hearing, item #20 being titled by him "All of Defendant's exhibits/documents". However, I had "bate-stamped" my exhibits by hand before handing them over to my counsel, and half of my numbers are missing in that production, including 2 contracts.

The rental contract was not attached to the businees letter/record, due to photocopy last minute issue. That evidence that was rejected by the Court should and have been accepted, I believe, if not on the business records exception, then, based on the Rules of Evidence, when I claimed it was evidencing an insurance double recovery fraud. Did the Judge not had to evaluate the situation and take measures ?

I went to the library of the Court today, in Miami. I could check the ressources there, they have computerized access to Westlaw.

I looked into various indexes on the shelves, especially one by keywords and I found a situation that looks similar to mine.

I will go back tomorrow and detail all this.


Malpractice,: I follow you , but more specifically after I was out of the hospital, becuase anything before, cousnel will tell he coul not reach me. There is also maybe excusable neglect and mistake: I will post another question when you close this one with my point.

Thanks a lot !

PS : This is my list of exhibits as per exhibit list of admissions filed by the clerk after the hearing:


1 Copy of Letter dtd 11/20/2009 Re: Rental Agreement - admission ID
2 Copy of email to Defendant from plaintiff dtd 10-17-2010 - admission w/o
3 Copy of check drawn on Bank of America for $41 ,100.00 - admission w/o
4 copy of Statement of Loss - admission ID
5 Copy of'Insurance Co Property Insurance letter dtd 6-8/2010 - admission w/o

Expert:  TexLaw replied 1 year ago.
"However, I had "bate-stamped" my exhibits by hand before handing them over to my counsel, and half of my numbers are missing in that production, including 2 contracts."

1. Are you saying that your attorney failed to produce the documents you provided?!?!

"The rental contract was not attached to the business letter/record, due to photocopy last minute issue."

2. Was the original of the business records affidavit with the rental contract produced to the court prior to trial or produced to opposing counsel prior to trial?


"Did the Judge not had to evaluate the situation and take measures?"

3. If the point was raised to the judge, then the judge made the wrong decision. However, the judge is not under a duty to raise the issue sua sponte (although he ethically should have since you were pro se).
Customer: replied 1 year ago.

1. My lawyer notified them "all the docs available at their office". I believe that Plaintiff has subtracted the documents that he did not like to be seen. That's what he also did with a Police subpoena with one piece of evidence that the detective had required to found plaintiff's bad faith, as shown on his report. That is missing from Plaintiff's production. I already talked with the detective.

It was one of my bate-stamped docs and it's been subtracted also from their ALL DOCUMENTS PRODUCED BY DEFENDANT exhibit at the trial hearing.

2. Produced to my counsel by plaintiffs counsel with a CD ROM, containing bate-stamped docs. These are mentioned as "docs bate stamped # XXXXX to nnn" in his exhibit list of his unilateral pre-trial statement.

3. Interesting point. Thank you !

My problem is to put all my ducks in a raw.

Eventually everything will click after I spend a good numbers of hours at the Library, reading some similar cases.

Expert:  TexLaw replied 1 year ago.
I agree. Good Luck and let me know what you find!
TexLaw, Attorney
Category: Business Law
Satisfied Customers: 4213
Experience: Internationational Commercial Attorney
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